If the abuser's gun is taken away, what will happen to it?
If the abuser is prohibited from having a firearm because you have a protection order against him/her, it can be given to the
sheriff/chief of police in the county/city in which the abuser lives for “safekeeping.” The abuser can get the firearm back once the protection order expires.1 If the abuser used or possessed a firearm while committing felony or a misdemeanor involving violence or intimidation, the firearm will be taken by law enforcement and forfeited (not returned to the abuser). Law enforcement can sell the firearm, use it, or destroy it.2
1 See ND Statutes §§ 14-07.1-02(4)(g); 14-07.1-03(2)(d)
2 ND Statutes § 62.1-01-02(1)
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the state police. If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).
You can find contact information for sheriff departments in your area on our ND Sheriff Departments page.
You can find ATF field offices in North Dakota on the ATF website. For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867). Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our ND Advocates and Shelters page.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1
1 United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What is the penalty for violating state or federal firearm laws?
If there is a specific provision written into the protection order that the abuser cannot possess a gun and s/he violates this provision, it can be a violation of North Dakota state law as follows:
- for the first violation, a class A misdemeanor, which can be punished by jail time of up to 1 year, a fine of up to $3,000, or both;1 and
- for a second (or subsequent) violation, a class C felony, which can be punished by jail time of up to 5 years, a fine of up to $10,000, or both.2
Also, if someone possesses a gun in violation of any of the conditions explained in I am a victim of domestic violence and the abuser has a gun. Is that legal?, it is a class C felony if s/he violates the conditions listed in #1, #2, or #3, and a class A misdemeanor if s/he violates the conditions listed in #4 or #5.3
Note: Under federal law, which applies to all states, anyone who has or buys a gun in violation of the federal firearm laws can be punished by a fine, jail time for up to 10 years, or both.4 However, as with any criminal case, the actual sentence the abuser gets may depend on a lot of different factors.
1 ND Statutes §§ 14-07.1-06; 12.1-32-01(5)
2 ND Statutes §§ 14-07.1-06; 12.1-32-01(4)
3 ND Statutes § 62.1-02-01(1)
4 18 USC § 924(a)(2)
What will happen if the abuser tries to purchase a gun?
Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.